EXHIBIT 10.6
FORTE SOFTWARE, INC.
VALUE-ADDED RESELLER (VAR) LICENSE AND SERVICES AGREEMENT
VAR CHORDIANT SOFTWARE, INC
____________________________________________________________________________
Address 00000 Xxxxxxx Xxxxx Xxxx., Xxx. 000
________________________________________________________________________
City Cupertino State CA Zip 95014
______________________________________ _____________________ ____________
This Value-Added Reseller (VAR) License and Services Agreement (the "Agreement")
is between Forte Software, Inc., a Delaware corporation located at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000 ("Forte"), and the company set forth above,
including any wholly or majority owned subsidiaries (the "VAR") for the purpose
of setting forth the terms and conditions upon which Forte shall grant to the
VAR a license to use and Sublicense the Products listed in Exhibit A attached
hereto. This Agreement shall supersede and replace the Value-Added Reseller
License and Services Agreement dated September 19, 1996 (and all other
agreements and understandings between the parties), which superseded the
Value-Added Reseller License and Services Agreement dated February 1, 1995.
The Effective Date of this Agreement is the last date set forth below.
FORTE: VAR:
FORTE SOFTWARE, INC. CHORDIANT SOFTWARE, INC.
Signature: /s/ Xxx X. Xxxxx Signature: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President Title: EVP/CFO
Date: October 30, 1998 Date: October 29, 1998
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
TERMS AND CONDITIONS
Forte and the VAR hereby agree that the following terms and conditions will
apply to each license granted and to all services provided by Forte under this
Agreement.
1. DEFINITIONS
1.1 "Cumulative Sublicense Fees" shall mean the total Sublicense fees,
including Full Use Sublicense Fees, accrued to Forte beginning upon the
Effective Date hereto for Products Sublicensed under this Agreement.
1.2 "Delivery Partners" shall mean a system integrator or other party
engaged to provide services to a Sublicensee or VAR with respect to VAR
Applications.
1.3 "Designated Developer" shall mean a person within the VAR designated by
VAR to develop applications with the Product.
1.4 "Distributors" shall mean Delivery Partners or other third parties
appointed by the VAR to market and grant Sublicenses of the VAR Application as
further set forth in Section 3.1(h) hereto.
1.5 "Documentation" shall mean the user manuals and operator instructions
furnished by Forte in conjunction with the Products.
1.6 "Effective Date" shall mean the date so specified on the signature page
of this Agreement or on the applicable Order Form, Sublicense report, or other
document.
1.7 "Order Form" shall mean Forte's standard form by which the VAR may
order licenses and services for VAR's use under this Agreement. Such Order Form
is attached hereto as Exhibit B.
1.8 "Price List" shall mean Forte's then-current price list for the country
in which a Product license or service is to be used.
1.9 "Product" or "Products" shall mean the computer software program(s)
owned or distributed by Forte for which the VAR is granted a license pursuant to
this Agreement and as further set forth in Exhibit A, whether in printed or
machine readable form and includes Updates (defined in Section 1.16). Forte
agrees that Exhibit A may be amended from time to time by the parties to include
other software Products not currently listed on Exhibit A that Forte licenses to
its customers generally.
1.10 "Runtime Users" shall mean the maximum number of logged-in persons
within a Sublicensee that may use the VAR Application at any one time.
1.11 "Standard Technical Support" shall mean Product technical support
services provided under Forte's policies in effect on the date such services are
ordered.
1.12 "Sublicense" shall mean a nonexclusive, nontransferable right granted
by the VAR or Distributor to use a VAR Application for the Sublicensee's own
internal business purposes and not for any further distribution.
1.13 "Sublicensee" shall mean a third party who is granted a Sublicense by
the VAR or a Distributor.
1.14 "Support Fees" shall mean the fees payable annually for Standard
Technical Support.
1.15 "Supported License" shall mean a Product license for which VAR has a
current order for annual Standard Technical Support.
1.16 "Updates" shall mean updated versions of the Products and Documentation
which encompass logical improvements, extensions and other changes to the
Products which are generally made available to Product licensees who are current
in their payment of Support Fees. Updates shall be governed by the terms of this
Agreement.
1.17 "VAR Application" shall mean the VAR's software program containing
modifiable Product code. A VAR Application shall be developed by the VAR through
use of the Products as further set forth in Section 2.1 hereto. The VAR shall
provide a description of each VAR Application using the form attached as Exhibit
C, and each VAR Application shall be approved in writing by Forte prior to
Sublicensing which approval will not be unreasonably withheld. Forte agrees that
future approved VAR Applications shall be governed by the terms of this
Agreement. Forte hereby approves VAR's CCS Application as described in Exhibit C
attached hereto. Notwithstanding any provision to the contrary in this
Agreement, nothing stated in this Agreement shall preclude VAR from developing
any VAR software program through the use of any third party product.
1.18 "VAR Price List" shall mean the VAR's then-current standard product
list and fee schedule. The VAR shall attach hereto as Exhibit D the initial VAR
Price List which includes the VAR Application. The VAR agrees to notify Forte of
all updates and revisions to such VAR Price List.
2. VAR LICENSE AND SERVICES
2.1 VAR Development License
(a) Fees. In consideration for the license described in (b) below, VAR shall pay
Forte the VAR license fee set forth on Exhibit A. Additional Designated
Developer and other
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licenses may be obtained for the applicable fees set forth in Exhibit A.
(b) License Grant. Forte grants to VAR a nonexclusive, worldwide,
nontransferable and nonassignable (except as otherwise specified herein)
license to use the Documentation and the Products listed on Exhibit A only
for the following purposes:
(i) to market and Sublicense to Sublicensees worldwide (subject to Section
7.8) VAR Application Development Systems (as defined in Exhibit A) and
the right to Sublicense such rights through multiple tiers of
distribution, each for the purposes described below. In connection with
its license pursuant to this clause, VAR shall limit access to such
Products to the number of Designated Developers indicated on the
applicable Order Form.
(ii) to develop or prototype the VAR Application;
(iii) to demonstrate the VAR Application to potential Sublicenses;
(iv) to provide training and technical support to employees and Sublicensees
solely in conjunction with the VAR Application; and
(v) in connection with providing consulting services and/or providing or
modifying VAR Applications to Sublicensees and potential Sublicensees.
In addition to the temporary Sublicenses specified in Section 3.1(c), VAR may
make up to five (5) copies of the Products for demonstration and training
purposes, may make a reasonable number of copies of the Products for archival or
backup purposes. Except as necessary to exercise its license rights or as
otherwise permitted hereunder no other copies shall be made without Forte's
prior written consent. Documentation may be obtained from Forte for the fees
specified in the Price List. All titles, trademarks, and copyright and
restricted rights notices shall be reproduced in such copies. All copies of the
Product(s) and Documentation are subject to the terms of this Agreement.
(c) Limitations on Use. VAR shall not use or duplicate the Products (including
the Documentation) for any purpose other than as specified in the Agreement, or
make the Products available to unauthorized third parties. VAR shall not (i) use
the Products for its internal data processing or for processing customer data;
(ii) except as noted in Exhibit A Section 4(d) rent, or timeshare the Products;
(iii) market the Products by interactive cable or remote processing services or
otherwise distribute the Products other than as specified in this Agreement;
(iv) publish or describe to any third party the results of any benchmark tests
run on the Products without Forte's prior written consent provided, however,
that VAR may publish benchmark tests and comparisons limited in scope to the VAR
Application's features; functionality and performance, so long as such benchmark
tests and comparisons do not directly disclose the functionality, features or
performance of any Product (including without limitation memory utilization,
response time, transaction throughput, relative performance/functionality on
different hardware and/or operating system platforms), or (v) cause or permit
the reverse engineering, disassembly, decompilation, or otherwise attempt to
derive source code of the Products. Transfer of a Product outside the United
States for VAR Application development or support shall be permitted only with
Forte's prior written consent, which shall not be unreasonably withheld, and is
subject to VARs payment of Forte's then current international fee uplift.
2.2. Development License Support
Subject to VAR's payment of the Support Fees set forth on Exhibit A, and so long
as Forte continues to offer similar support services to its other Product
licensees, Forte will provide annual Standard Technical Support to VAR as
follows:
(a) Telephone Support. Forte will provide telephone consultation at Forte's
service location, to assist VAR in identifying, verifying and resolving problems
in the use and operation of the Product. Telephone assistance services shall be
limited to those VAR personnel indicated on the applicable Order Form, which may
be amended from time to time by VAR upon written notice to Forte.
(b) Problem Resolution. Forte will respond to problem reports concerning the
Products submitted by VAR to Forte, using the form provided by Forte where
possible, including backup material substantiating the Product problem. Upon
proper notification of a failure of the Product to perform correctly, which
failure can be reproduced at Forte's facility or via remote access to VAR's
facility, Forte shall use reasonable efforts to correct the failure and to
provide VAR with correcting Product, a work-around or other solution to the
problem.
Standard Technical Support services will be provided in accordance with the
sections entitled "Types of Assistance Offered" and "How Forte Resolves Your
Call" of the Forte Technical Support Users Guide ("Support Guide"), attached
hereto as Exhibit F or policies that are substantially similar thereto. In the
event of a conflict of inconsistency between this Section 2.2 and the Support
Guide, Section 2.2 shall govern.
(c) Updates. Forte will provide VAR with Updates. For a minimum of 12 months
after the introduction of a new generally available release, Forte will use
reasonable efforts to provide Standard Technical Support for the previous
release of the Product.
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THE OMITTED PORTIONS.
(d) Renewal. Forte will notify the VAR at least 30 days before the annual
support period is scheduled to expire. Fees for annual support are due annually
in advance. Such fees will be those in effect at the beginning of the period for
which the fees are paid. Annual support will terminate unless the VAR renews for
the next year under Forte's then current policies by providing Forte with a
purchase order and/or payment of the next year's fees prior to the expiration
date.
(e) Re-Instatement. VAR may reinstate lapsed support services only upon payment
of the back Support Fees specified in the Price List, plus current year's
Support Fees.
2.3 Consulting and Training Services
Forte will provide on-site consulting services ordered by VAR at Forte's
then-standard consulting rates under the terms and conditions of this Agreement
and any relevant work order; provided, however, that Forte will consider
offering Chordiant a discount on consulting orders of $100,000 or more (such
consulting services to be used within six months of purchase). Scheduled service
dates will be agreed upon mutually, subject to availability of Forte personnel.
Forte's daily consulting rate is based on an eight-hour workday. VAR shall
reimburse Forte for actual, reasonable travel and out-of-pocket expenses
incurred in performing such services. VAR may also order training from Forte
(scheduled classes at Forte's facilities or on-site) at Forte's then-standard
rates under this Agreement. All consulting and training services must be
utilized by VAR within six (6) months following the date ordered by VAR.
Unless otherwise agreed by the parties in writing, Forte consulting services
will be limited to transferring knowledge to and mentoring VAR's staff on "best
practices" concerning the Products, and reviewing and providing input on VAR's
design and implementation of applications developed and deployed using the
Products. Development and deployment of applications will remain at all times
under VAR's control and direction. Ultimate responsibility for development and
deployment of such applications is with VAR, and Forte will not be liable to VAR
or any third party for any delay in completion or non-completion of any
application.
2.4 Ownership and Rights to Developments
(a) Products and Documentation. VAR acquires only the right to use the Products
and Documentation, and does not acquire any rights of ownership. All right,
title, and interest in and to the Products and Documentation, including without
limitation all intellectual property rights therein, shall at all times remain
with Forte and its licensors.
(b) VAR Application. Exclusive of Product, the VAR Application and all other
software that VAR develops (or has developed by a third party), and all changes
or modifications thereto, will remain the sole and exclusive property of VAR.
Exclusive of Product, Forte shall have no interest or acquire any rights in the
VAR Application or other software or in such changes or modifications. Except as
may otherwise be agreed to in writing by the parties under Section 2(d)(i),
Forte irrevocably assigns to VAR all right, title and interest worldwide in and
to any changes or modifications to the VAR Application (exclusive of Product)
and all applicable intellectual property rights related to the VAR Application
(exclusive of Product), including without limitation, copyrights, trademarks,
trade secrets, patents, moral rights, contract and licensing rights.
Notwithstanding the foregoing and as a condition of this Agreement and in
consideration for the licenses granted herein, VAR agrees that it shall not
sublicense or otherwise distribute the VAR Application (containing any Product)
after termination or expiration of this Agreement. Nothing in this Agreement
shall restrict in any way the license by VAR, or require license or other
payments to Forte with respect to products or applications which are not VAR
Applications, or require VAR or any other party to license VAR Applications or
Products.
(c) Developments. Any ideas, know-how, or techniques concerning the Products or
their use which may be developed, conceived or reduced to practice by Forte in
the course of providing services under this Agreement, including without
limitation any enhancements or modifications made to the Products (collectively,
"Developments"), shall be the exclusive property of Forte. Forte may in its sole
discretion develop, use, market, and license any Developments. Forte may create
items similar or related to the VAR Developments or other products which are
developed by Forte for VAR provided such items are independently developed
without use of VAR's Confidential Information or trade secrets. Forte shall not
be required to disclose information concerning any Developments which Forte
deems to be proprietary and confidential. Any ideas, know-how, or techniques
concerning the VAR Applications or Products or their use which may be developed,
conceived or reduced to practice by VAR, including without limitation any
enhancements or modifications made to the VAR Applications (collectively, "VAR
Developments"), shall be the exclusive property of VAR. VAR may in its sole
discretion develop, use, market, and license any VAR Developments. VAR may
create items similar or related to the Products or Developments or other
materials developed by Forte for VAR provided such items are independently
developed without use of Forte's confidential information or trade secrets. VAR
shall not be required to disclose to Forte any information concerning any VAR
Developments.
(d) Custom Work Product. Notwithstanding subsection (c) above, if consulting
services rendered by Forte will by
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mutual written agreement include the design or development of the VAR
Application, other software, documentation, or other intellectual property
specific to VAR's needs ("Custom Work Product"), then (i) the parties must agree
in writing in each instance on the ownership rights in or to such Custom Work
Product prior to Forte's commencement of such services or (ii) if no such
agreement is reached, VAR shall have sole and exclusive ownership of the Custom
Work Product. Under this subsection (ii), Forte irrevocably assigns to VAR all
right, title and interest worldwide in and to the Custom Work Product and all
applicable intellectual property rights related to the Custom Work Product,
including without limitation, copyrights, trademarks, trade secrets, patents,
moral rights, contract and licensing rights. Forte shall have the right to
create items similar or related to Custom Work Product provided such items are
independently developed without use of VAR's Confidential Information or trade
secrets. Notwithstanding any other provision to the contrary, for any consulting
services Forte provides to VAR which result in Custom Work Product that is
exclusively owned by VAR under subsection (ii) above, Forte shall not be
precluded from using Residuals (defined below) from such Custom Work Product.
"Residuals" shall mean ideas, concepts and understandings related to the Custom
Work Product which would be retained in the memory of an ordinary employee not
intent on appropriating such Custom Work Product when performing such services.
Notwithstanding the parties' agreement that VAR shall own any particular Custom
Work Product, any Developments and any proprietary software or other items
previously developed and/or owned by Forte and included in the Custom Work
Product shall remain the exclusive property of Forte. Forte hereby grants to VAR
a non-exclusive, perpetual, worldwide, fully paid-up license to copy, modify,
Sublicense, distribute and use solely for VAR's exercise of rights granted under
this Agreement all Developments and other Forte-owned items included in the
Custom Work Product. All copies of any Custom Work Product which is wholly or
partially owned by Forte shall include Forte's copyright notice and may not be
provided to third parties without Forte's prior written consent.
3. SUBLICENSING
3.1 Terms and Conditions
(a) Right to Sublicense. Forte hereby grants VAR a nonexclusive, nontransferable
and nonassignable (except as expressly provided in this Agreement) license to
market and Sublicense to Sublicensees worldwide (subject to Section 7.8) and the
right to Sublicense such rights through multiple types of distribution (e.g.,
system integrators) (i) the Products as an integral part of the VAR Application,
(ii) the Core System Products (as defined in Exhibit A) for use with
applications other than the VAR Application (a "Full Use License"), provided
that a Sublicensee has also received a license to a VAR Application and provided
that a Forte Regional Sales Manager has reviewed and approved all quotations for
any Products above and beyond a Forte Core System prior to being presented to
the proposed Sublicensee. Each Sublicense shall be granted solely through a
written Sublicense agreement which shall include terms substantially similar to
those set forth on Exhibit E hereto. In the event of any Full Use License, Forte
shall promptly ship such Products and Documentation directly to the applicable
Sublicensee as identified on the Order Form. At Forte's request, VAR shall
provide Forte with a copy of VAR's standard Sublicense agreement. VAR may only
Sublicense those Products which VAR has previously licensed from Forte.
(b) Sublicense Fees. VAR shall pay Forte the Sublicense fee set forth on Exhibit
A. Sublicense fees shall be due and payable with each applicable Sublicense
report.
(c) Temporary Sublicenses. VAR and its Distributors shall be entitled to grant
temporary Sublicenses of the VAR Application or Full Use Licenses at no charge,
for evaluation/pilot purposes only, with no Sublicense fees owed to Forte as
long as a maximum of twenty (20) such temporary Sublicenses are in effect at any
one time. The term of each such temporary Sublicense shall be for a period not
to exceed ninety (90) days. VAR shall terminate or pay to Forte the applicable
Sublicense fees for perpetual Sublicenses for any temporary Sublicenses
outstanding in excess of ninety (90) days.
(d) Sublicensee Use. VAR is granted the Sublicensing rights described herein on
the understanding that, except for a Full Use License or where such a
restriction is not permitted by applicable law, Sublicensees will be permitted
use of the Products only in connection with the VAR Application. VAR shall use
reasonable commercial efforts to enforce the terms of its Sublicense agreements
to the extent that they relate to the Products. If VAR is aware that a
Sublicensee without a Full Use License is using a Product beyond the limited
functionality set forth in the VAR Application Sublicense agreement (for
example, use of any Product for development purposes outside of the scope of the
VAR Application), VAR or Distributor shall immediately notify the Sublicensee of
such unauthorized use. If the Sublicensee fails to discontinue such unauthorized
use following notification, VAR or Distributor shall at VAR's option either
terminate the sublicense, or forward to Forte one hundred percent (100%) of the
applicable then current Product full use license fee.
(e) Sublicensing Practices. At all times during this Agreement VAR shall: (i)
avoid deceptive, misleading, illegal, or unethical practices that may be
detrimental to Forte or to the Products; (ii) not make any representations,
warranties, or guarantees to Sublicensees concerning the Product that are
inconsistent with or in addition to those made in this Agreement and (iii)
comply with all
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applicable laws and regulations with respect to the VAR Application and related
services rendered by VAR.
(f) Sublicense Reports. Within forty-five (45) days of the last day of each
quarter, VAR shall send Forte a report detailing for the quarter:
(i) for each VAR Application or Product for a Full Use License shipped
during the prior quarter, Sublicensee name and address, date of shipment,
whether the Sublicense is temporary for evaluation purposes, and total
Sublicense fees due to Forte;
(ii) for each grant of additional rights to use a VAR Application
previously shipped, a description of such additional rights, and a description
of the applicable Sublicense fees and Support Fees due Forte for such grant; and
the Distributor agreements executed during the prior month, including names and
addresses of the Distributors.
With each sublicense report, VAR shall simultaneously provide Forte with payment
of all fees required under such report. VAR shall require its Distributors to
report the information in clause (i) above to VAR on a quarterly basis and will
include it in the report for the quarter in which VAR received the information.
VAR hereby agrees that the information obtained by Forte pursuant to clause (i)
above, with the prior written consent of the VAR Sales Director, may be used by
Forte for the sole purpose of contacting such new Sublicensee to address any
opportunities outside of the VAR Application solution. Such information shall be
deemed to be Confidential Information as defined in Section 7.1 of this
Agreement. The VAR shall be eligible for compensation on sales by Forte of Full
Use Licenses above and beyond a Full Use Core System License to such customers,
in accordance with the then-current `reverse royalty' or similar program
maintained by Forte.
(g) Sublicensee Documentation. VAR shall be responsible for providing
documentation for Sublicensees. VAR shall have the right to incorporate portions
of the Documentation into the VAR's documentation subject to the provisions of
Section 7.4 of the Agreement at no additional charge to VAR. Forte shall provide
VAR with electronic copies of all current documentation, in the form of CDs or
such other means as reasonably requested by VAR.
(h) Distributors. VAR may appoint Distributors to market and Sublicense the
VAR Application under the terms of the Agreement. If a Distributor desires to
make any Product-specific modifications to the VAR Application requiring the
Product, it must do so pursuant to a development license unless such Distributor
already has an appropriate license acquired directly from Forte or other third
party. Each Distributor's agreement with VAR shall allow it to market and
Sublicense the VAR Application only in accordance with the Sublicensing
provisions of this Agreement. Forte shall be deemed a third party beneficiary of
the portions of the Agreement between VAR and such Distributor that relate to
the Products. VAR agrees to use all reasonable efforts to enforce its
Distributor agreements and to inform Forte immediately of any known material
breach thereof related to the Products.
(i) VAR Audit. VAR shall maintain adequate books and records in connection
with its activity under this Agreement, which shall include but not be limited
to executed Sublicense agreements. Forte may at its expense, retain an
independent third party to audit the relevant accounting books and records of
VAR regarding shipment of VAR Applications or Products to ensure compliance with
the terms of this Agreement. If an audit reveals that VAR has underpaid fees to
Forte; VAR shall promptly pay such fees. Any such audit shall be conducted
during regular business hours at VAR's offices and shall not interfere
unreasonably with VAR's business activities. If the underpaid fees are in excess
of five percent (5%) of the total fees previously paid and then payable from
VAR, then VAR shall pay Forte's reasonable costs of conducting the audit. Audits
shall be made no more than once annually. In addition, each Sublicensee and
Distributor agreement shall permit VAR to conduct a similar audit of VARs
Sublicensees and/or Distributors. VAR shall, upon reasonable evidence that an
audit of a Sublicensee or Distributor is warranted, conduct such audit..
(j) Indemnification. VAR agrees to use reasonable commercial efforts to
enforce the terms of its Sublicense and Distributor agreements required by this
Agreement to the extent that they relate to the Products and to inform Forte of
any known material breach of such Forte-related terms. VAR will defend and
indemnify Forte against: (i) all direct damages to Forte arising from any use by
VAR, its Distributors or its Sublicensees of any product not provided by Forte
but used in combination with the Products if such claim would have been avoided
by the exclusive use of the Products; and (ii) all direct damages suffered by
Forte as a result of VAR's failure to include or reasonably enforce the required
contractual terms set forth herein in each Sublicense and Distributor agreement,
provided that: (i) Forte promptly notifies VAR in writing of the claim; (ii) VAR
has sole control of the defense and all related settlement negotiations; and
(iii) Forte provides VAR with the assistance, information, and authority
necessary to perform the above; reasonable out-of-pocket expenses incurred by
Forte in providing such assistance will be reimbursed by VAR.
(k) Federal Government Sublicenses. The Products and Documentation are
commercial computer software and documentation developed exclusively at private
expense, and in all respects are proprietary data belonging solely to Forte.
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THE OMITTED PORTIONS.
Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the Government's right
to use, reproduce or disclose the Products and Documentation acquired under this
Agreement is subject to the restrictions of this Agreement.
(l) Inherently Dangerous Applications. The Products are not specifically
developed, or licensed for use in any nuclear, aviation, mass transit, or
medical application or in any other inherently dangerous applications. VAR
agrees to notify each Sublicensee of this limitation. VAR agrees, and each
Sublicensee shall agree, that Forte shall not be liable for any claims or
damages arising from VAR's or a Sublicensee's use of the Products for such
applications. If VAR fails to notify Sublicensee of the limitations specified
above, VAR agrees to indemnify and hold Forte harmless from any claims for
losses, costs, damages, or liability arising out of or in connection with the
use of the Products in such applications.
(m) Notwithstanding Section 1.12 and Items 2 and 3 of Exhibit E and any
other provision in this Agreement, VAR or Distributor shall have the right to
allow a Sublicensee to transfer or assign a Sublicense granted by VAR or
Distributor hereunder, upon written notice to VAR and such transferee/assignee
agrees to be bound by the terms and conditions of the applicable Sublicense
Agreement.
3.2 Sublicense Technical Support
In consideration for the right to provide technical support services to its
Sublicensees, the VAR agrees to pay Forte the applicable annual technical
support services fee set forth in Exhibit X. Xxxxx shall not be required to
provide any assistance needed to install the VAR Application at Sublicensee
sites. Forte shall not be required to provide any Product technical support,
training and consulting to Sublicensees or Distributors. The VAR shall
continuously maintain Standard Technical Support services from Forte during the
period during which VAR provides technical support services to any Sublicensees.
Any questions from the VAR's Sublicensees or Distributors regarding VAR
Applications will be referred by Forte to the VAR.
3.3 Consulting and Training Services
A Sublicensee may contract directly with Forte for consulting and training
services at Forte's then-current rates. VAR shall have no right to market and/or
sell Forte consulting and training services, but may order Forte consulting and
training to be performed on behalf of a Sublicensee and/or Distributor
hereunder. Forte agrees that VAR may order Forte consulting and training
services under the terms of this Agreement and that no additional agreements
(subcontract or otherwise) would be required by Forte to be perform such
services for VAR or on behalf of VAR for a Sublicensee or Distributor.
4. INVOICING, PAYMENT & TAXES
(a) Payment Terms. Invoices for payment of fees shall be payable in U.S.
dollars on the Effective Date of the Order Form or Sublicense Report, as
applicable. All payment obligations identified on executed Order Forms and
Sublicense Reports (as calculated in accordance with Exhibit A) are
noncancellable and, upon payment, are nonrefundable. VAR will provide Forte with
a written purchase order for licenses and support at the time of execution of an
Order Form or submission to Forte of a Sublicense Report, as applicable. Other
applicable fees shall be payable when invoiced. All fees shall be deemed overdue
if they remain unpaid 30 days after the quarterly report date. If the VAR's
procedures require that an invoice be submitted against a purchase order before
payment can be made, the VAR will be responsible for issuing such purchase order
30 days before the payment due date. All overdue amounts shall become interest
at the rate of one and one-half percent (1-1/2%) per month or the maximum legal
rate, if less, however, nothing herein shall limit Forte's right to terminate
this Agreement as set forth herein.
(b) Taxes. The fees listed in this Agreement do not include taxes. The VAR
shall pay or reimburse Forte for all sales, use, excise, personal property,
value-added, or other applicable taxes, duties or assessments based on the
licenses granted or the services provided under this Agreement or on the VAR's
use of the Products, except that the VAR shall have no responsibility for income
taxes imposed on Forte.
5. TERM AND TERMINATION
5.1 Term
This Agreement shall commence on the Effective Date hereto and shall be valid
for a period of three (3) years. Each Sublicense granted under this Agreement
shall continue in perpetuity unless terminated as provided in Paragraph 5.2
below.
5.2 Termination
Upon written notice to Forte, VAR may terminate this Agreement and any license
herein at any time. Upon written notice to VAR, Forte may terminate this
Agreement and any license granted herein if VAR materially breaches this
Agreement and fails to correct the breach within thirty (30) days following
written notice from Forte specifying the breach. Notwithstanding the previous
sentence, if the material breach is of such a nature that it cannot be
reasonably be corrected within such 30 days, Forte agrees not to terminate the
Agreement or any license granted herein, provided VAR uses all reasonable
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
and good faith efforts to cure such breach in a timely manner, but not to exceed
90 days from written notice specifying the breach. Forte agrees that it may not
terminate any license that was granted hereunder to a Sublicensee, provided the
license to such Sublicensee was granted in accordance with the terms herein when
licensed and such Sublicensee is not in material breach of the Sublicense
Agreement.
5.3 Effect of Termination
(a) Upon expiration or termination of this Agreement, all VAR's right to
market, Sublicense, and use the Products as set forth in this Agreement shall
cease, and Forte may declare all sums owed hereunder immediately due and
payable. VAR also agrees that it shall not sublicense or otherwise distribute
the VAR Application (which contains any Product or any portion thereof) after
expiration or termination of this Agreement.
(b) Unless the expiration or termination of this Agreement is due to a
material breach by VAR, VAR may continue using a single copy of the most recent
release of the Products then in VAR's possession solely for the purpose of
continuing technical support for Sublicenses granted prior to termination. Such
continued use of the Products shall be subject to all the provisions of this
Agreement, including, without limitation, payment of the Support Fees specified
herein.
(c) The termination of this Agreement or any license acquired hereunder
shall not limit either party from pursuing any other remedies available to it
including injunctive relief, nor shall such termination relieve VAR's obligation
to pay all fees that have accrued or that VAR has agreed to pay under any Order
Form or other similar ordering document under this Agreement. The parties'
rights and obligations under Sections 2.1(c), 2.4, 3.1(d),(e),(f) and (h)
through (m), and Sections 4, 5, 6, and 7 shall survive termination of this
Agreement.
5.4 Return of Products upon Termination
Except as provided in Section 5.3(b) above, upon expiration or termination of a
license hereunder, VAR shall: (i) cease using the applicable Products; and (ii)
represent in writing to Forte within one month after termination that VAR has
destroyed or has returned to Forte the Products, Documentation and all copies
except for a reasonable number of archived copies. This requirement applies to
copies and storage in all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into other materials.
6. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
6.1 Infringement Indemnity
(a) Forte will defend and indemnify VAR against all costs (including
reasonable attorneys fees and Sublicense fees attributable to Sublicenses for
which VAR was required to refund license fees to the applicable Sublicensee due
to such infringement,) arising from a claim that Products furnished and used
within the scope of this Agreement infringe a copyright, patent, trademark, or
other intellectual property right provided that: (i) VAR promptly notifies Forte
in writing of the claim; (ii) Forte has sole control of the defense and all
related settlement negotiations; and (iii) VAR provides Forte with the
assistance, information, and authority necessary to perform the above;
reasonable out-of-pocket expenses incurred by VAR in providing such assistance
will be reimbursed by Forte.
(b) Forte shall have no liability for any claim of infringement to the
extent based on: (i) use of a superseded or altered release of a Product if such
infringement would have been avoided by the use of a current unaltered release
of the Product that Forte provides to VAR; or (ii) the combination, operation,
or use of any Products furnished under this Agreement with programs or data not
furnished by Forte if such infringement would have been avoided by the use of
the Products without such programs or data.
(c) In the event the Products are held or are believed by Forte to
infringe, Forte shall have the option, at its expense, to: (i) modify the
Products to be non-infringing; (ii) obtain for VAR a license to continue using
the Products; (iii) substitute the Products with other software reasonably
suitable to VAR; or if (i) - (iii) are not commercially reasonable for Forte,
(iv) terminate the license for the infringing Products and refund the license
fees paid for those Products. This Section 6.1 states Forte's entire liability
for infringement.
6.2 Product Warranty
Except as stated below, for each Supported License Forte warrants that each
Product will perform the functions described in the associated Documentation
when operated on the specified platform for a period of 30 days from the date of
shipment of such Product to VAR.
Forte further warrants that the Products will fully comply with the following
millennium compliance statement when configured and used according to the
Documentation. The definition of compliance is the ability to:
1. correctly handle date information before, during and after 1 January
2000 accepting date input, providing date output and performing calculation
on dates;
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2. function according to the Documentation, during and after 1 January
2000 without changes in operation resulting from the advent of the new
century;
3. where appropriate, respond to two digit date input in a way that
resolves the ambiguity as to century in a disclosed, defined and
predetermined manner;
4. store and provide output of date information in ways that are
unambiguous as to century;
5. manage the leap year occurring in the year 2000, following the
quad-centennial rule.
Forte does not warrant that each Product will meet VAR's requirements, that the
Products will operate in the combinations which VAR may select for use or with
all non-Forte software used by VAR, that the operation of each Product will be
uninterrupted or error-free, or that all Product errors will be corrected. Forte
will undertake to correct any reported error condition in accordance with its
then-current Standard Technical Support policies and the terms of this
Agreement, with the terms of this Agreement to prevail in the event of any
conflict. Forte shall have no obligation to undertake correction of errors
caused by VAR modifications to the Product. VAR's sole and exclusive remedy for
Product nonconformity shall be recovery of the license fees paid to Forte for
such non-conforming Product.
As an accommodation to VAR, Forte may supply VAR with (i) preproduction releases
of Products labeled "Alpha," "Beta" or otherwise, which are not suitable for
production use or for development of the VAR Application, or (ii) shareware
items such as "Fshare" containing code developed by Forte and/or its customers
and partners. Notwithstanding anything to the contrary in this Agreement, such
preproduction releases and shareware are provided to VAR "as is" without
warranty of any kind, express or implied, and neither party will be responsible
to the other for any losses, claims or damages of whatever nature arising out of
VAR's use of such items. Forte shall identify at the time of release of any such
preproduction or shareware releases what type of support, if any, is provided by
Forte. Unless stated otherwise, however, no support shall be provided by Forte
for such releases. Standard Technical Support does not include support or
updating of shareware items. VAR will promptly report any error condition
discovered in a preproduction release, and provide Forte with appropriate test
data if necessary to resolve problems encountered by VAR with a preproduction
release.
6.3 Media Warranty
Forte warrants all media delivered to VAR to be free of defects in materials and
workmanship under normal use for 90 days from the Effective Date. Replacement of
media without charge is VAR's sole and exclusive remedy in the event of a media
defect.
6.4 Services Warranty
Forte warrants that its Standard Technical Support, consulting and other
services will be of a professional quality conforming to generally accepted
industry standards and practices. This warranty shall be valid for 90 days from
completion of service. For any breach of the above warranty, VAR's exclusive
remedy and Forte's entire liability shall be: (i) the re-performance of the
services; or (ii) if Forte is unable to perform the services as warranted,
recovery of the fees paid to Forte for such deficient services.
6.6 Limitations of Warranties
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
6.7 Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUE (EXCEPT AS
ALLOWABLE AND DETERMINED TO BE A DIRECT DAMAGE) OR PRODUCT USE, OR LOSS OR
INACCURACY OF DATA, AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCURRED BY EITHER PARTY
OR ANY THIRD PARTY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT WITH RESPECT TO SECTIONS 6.1, 3.1(j) AND TO THE EXTENT
LOSS OF PROFITS AND/OR REVENUE ARE ALLOWABLE AND DETERMINED TO BE DIRECT DAMAGES
DUE TO THE OTHER PARTIES UNATHORIZED COPYING OR DISTRIBUTION OF THE PRODUCT OR
VAR APPLICATION EITHER PARTY'S LIABILITY FOR DAMAGES HEREUNDER, WHETHER IN AN
ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, SHALL IN NO EVENT EXCEED THE
AMOUNT OF FEES PAID BY VAR UNDER THIS AGREEMENT FOR THE RELEVANT LICENSE OR
SERVICE.
The provisions of this Section 6 allocate the risks under this Agreement between
Forte and VAR. Forte's pricing reflects this allocation of risk and the
limitation of liability specified herein.
7. GENERAL TERMS
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
7.1 Nondisclosure
By virtue of this Agreement, the parties may have access to information that is
confidential to one another ("Confidential Information"). Confidential
Information shall be limited to the Products and the VAR Application,
information related thereto, all other information clearly marked as
confidential, and other items as agreed by the parties in writing.
A party's Confidential Information shall not include information which (i) is or
becomes a part of the public domain through no act or omission of the other
party; or (ii) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; or (iii) is lawfully disclosed to the
other party by a third party without restriction on disclosure, or (iv) is
independently developed by the other party.
The parties agree, both during the term of this Agreement and for a period of
five (5) years after termination hereof, to hold each other's Confidential
Information in confidence. The parties agree not to make each other's
Confidential Information available in any form to any third party or to use each
other's Confidential Information for any purpose other than the implementation
of this Agreement. Each party agrees to take all reasonable steps to ensure that
Confidential Information is not disclosed or distributed by its employees or
agents in violation of the provisions of this Agreement.
7.2 Governing Law and Jurisdiction
This Agreement shall be governed and construed under the laws of the State of
California, as applied to agreements executed and performed entirely in
California by California residents. In no event shall this Agreement be governed
by the United Nations Convention on Contracts for the International Sale of
Goods. In any legal action relating to this Agreement each party agrees (i) to
the exercise of jurisdiction over it by a state or federal court in San
Francisco or Alameda County, California; and (ii) that if a party brings the
action, it shall be instituted in one of the courts specified in subparagraph
(i) above.
7.3 Copyrights
VAR acknowledges that the Products and Documentation are proprietary to Forte
and protected by copyright, patent and/or trade secret laws. VAR agrees to
include without alteration, in all copies and reproductions of the Products,
Documentation and VAR Application, reproductions of Forte's restricted rights
notices, copyright notices and other proprietary legends. A copyright notice in
a Product does not, by itself, constitute evidence of publication or public
disclosure.
7.4 Marks
All trademarks, service marks, trade names or logos identifying the Products or
Forte's business (the "Marks") are the exclusive property of Forte or its
licensors. VAR will not take any action that jeopardizes Forte's or its
licensors' proprietary rights or acquire any right in the Marks except as
specifically set forth below. VAR will not register, directly or indirectly, any
trademark, service xxxx, trade name, copyright, company name or other
proprietary or commercial right which is identical or confusingly similar to the
Marks or which constitute a translation of a Xxxx into another language. VAR
will use the Marks exclusively to identify the Products and shall not use the
Marks in combination with any trademarks, service marks, or logos of VAR which
would create confusion as to the ownership or identity of the Marks (e.g.
"ForteCCS"). Any such use of the Marks will clearly identify Forte or its
licensors as the owner of the Marks and conform to Forte's then current
trademark and logo guidelines which Forte agrees to supply to VAR at VARS
request. At Forte's request, VAR will deliver to Forte a sample of all
advertisements or promotional materials bearing a Xxxx. If Xxxxx notifies VAR
that the use of the Xxxx is inappropriate, in its reasonable judgment, VAR will
not publish or otherwise disseminate the advertisement or promotional materials
until they have been modified to Forte's reasonable satisfaction. VAR will
immediately notify Forte if VAR learns of any potential infringement of the
Marks by a Sublicensee. Forte will determine the steps to be taken under these
circumstances. In connection with any such potential infringement of or by the
Marks, VAR will (a) provide Forte, at Forte's expense, with the assistance that
Forte may reasonably request and (b) not take steps that would prejudice Forte's
rights in the Marks without Forte's prior approval.
7.5 Relationship between Parties
In all matters relating to this Agreement, the VAR will act as an independent
contractor. The relationship between Forte and the VAR is that of
licenser/licensee. Neither party will represent that it has any authority to
assume or create any obligation, express or implied, on behalf of the party, nor
to represent the other party capacity.
7.6 Notice
All notices relating to this Agreement shall be in writing and delivered by
overnight delivery service or first class prepaid mail with return receipt
requested to the address of such party specified above to the attention of its
Chief Financial Officer or such other address specified by such other party in
accordance with this Section.
7.7 Severability/Waiver
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in full
force and effect. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach.
7.8 Export Administration; U.S. Government Rights
VAR agrees to comply fully with all relevant laws, regulations and orders of the
United States and other countries to which the Products or VAR Application are
shipped, the U.S. Department of Commerce, and other U.S. and applicable non-U.S.
agencies to assure that all Products, Developments and Custom Work Product and
related media are not exported in violation of the laws of the United States and
other applicable countries.
7.9 Non-assignability and Binding Effect
Notwithstanding Section 2.1(b) or any other provision hereof, the Agreement,
Product and Documentation licenses granted herein may be transferred or assigned
by VAR upon written notice to Forte to (a) any entity that is either directly or
indirectly controlled by VAR ("control" for purposes of this Agreement shall
mean ownership of at least 51% of the voting capital stock of a corporation, or
51% of the voting equity of any non-corporate entity), or (b) the surviving
entity of a merger, acquisition or reorganization of all or substantially all of
VAR's assets, capital stock or other equity, so long as such proposed transferee
or assignee agrees in writing to be bound by the terms and conditions of this
Agreement. Except as provided above, any attempted assignment of the rights or
delegation of the obligations under this Agreement shall be void without the
prior written consent of the non-assigning or non-delegating party. In the case
of any permitted assignment or transfer of or under this Agreement, this
Agreement or the relevant provisions shall be binding upon, and inure to the
benefit of, the successors, executors, heirs, representatives, administrators
and assigns of the parties hereto.
7.10 Force Majeure
Neither party shall be liable to the other for its failure to perform any of its
obligations under this Agreement or any Exhibit, during any period in which such
performance is delayed because rendered impracticable or impossible due to
circumstances beyond its reasonable control, provided that the party
experiencing the delay promptly notifies the other of the delay.
7.11 Remedies
The parties stipulate that the legal remedies of any party in the event of any
default or threatened default by the other party in the performance of or
compliance with any of the terms of this Agreement are not and shall not be
adequate, and that such terms may be specifically enforced by a decree for
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms of this Agreement or otherwise. Except
as specifically provided in this Agreement, no remedies in this Agreement are
exclusive of any other remedies but shall be cumulative and shall include all
remedies available hereunder or under any other written agreement or in law or
equity, including rights of offset.
7.12 Entire Agreement
This Agreement constitutes the complete agreement between the parties and
supersedes all previous agreements or representations, written or oral, with
respect to the Products and services specified herein. This Agreement may not be
modified or amended except in a writing signed by a duly authorized
representative of each party.
It is expressly agreed that any term and conditions of the VAR's purchase order
shall be superseded by the terms and conditions of this Agreement. This
Agreement shall also supersede the terms of any unsigned license agreement
included in a package for Forte-furnished software.
7.13 Escrow
Forte represents that it has deposited with an escrow agent copies of the source
code and reasonable technical documentation for all the most recent versions of
the Products licensed under the Agreement, pursuant to a Technology Escrow
Agreement with such escrow agent, a copy of which has been provided to VAR. Upon
VAR's execution of the instrument enrolling VAR as a party to the Technology
Escrow Agreement attached as Exhibit G, VAR shall be entitled to receive a copy
of the escrowed source code and documentation from the escrow agent in the event
Forte becomes insolvent, is a party to a bankruptcy filing, ceases business
operations generally or ceases to make available maintenance or support services
for the then-current version of the licensed Product. Forte shall pay all
relevant escrow fees to the escrow agent. In the event VAR receives the escrowed
source code and documentation, VAR shall have the royalty-free, nonexclusive,
perpetual right to use such source code solely for use in maintaining and
supporting the licensed Products under the terms of this Agreement. All such
source code, as delivered or modified, shall constitute Confidential Information
of Forte for purposes of Section 7.1 of the Agreement, and VAR shall not
disclose the source code or its modifications to others or permit others to copy
the source code or modifications thereof. Forte shall update the deposited
material within thirty (30) days after each major update to the licensed
Product. Forte
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
acknowledges VAR's right to request and receive verification from
the escrow agent (and/or Forte) confirmation that Forte has deposited source
materials as obligated under this paragraph.
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Exhibit A
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Forte Software, Inc.
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VAR Fees and Royalties
----------------------
1. VAR License Fee. The parties agree that this Agreement supersedes the
previous VAR agreement between the parties regarding distribution of the VAR
Application. Forte acknowledges that VAR has previously paid all VAR license
fees owed under such previous agreement. In consideration for payment of such
license fees, the license to VAR pursuant to Section 2.1 is with respect to the
following Products and components:
Products
--------
Forte Application Environment
Forte Express
Forte WebEnterprise (previously known as WebSDK)
Components
----------
5 Designated Developers
Unlimited Client Environments
Unlimited Server Environments
Unlimited RDMBS Development Interfaces
1 Shared Repository
1 Documentation Set of Forte (both Hardcopy and CD ROM)
2. Additional Designated Developer and Other License Fees. The fee for
------------------------------------------------------
each additional Designated Developer license is [*]. Other items may be licensed
for the fees set forth in the Price List.
3. Support Fees. Annual Support Fees for the license pursuant to Section
2.1 shall equal [*] of Forte's then-current Core System (as defined below) list
price [*].
Annual Support Fees for Products or license components not listed in Section 1
above shall be the [*] multiplied by the then-current list price of the item
acquired.
4. Sublicense Fees. Upon shipment of the VAR Application or invoicing of a
Sublicensee for the license of the VAR Application, whichever occurs first, VAR
agrees to pay Forte a Sublicense fee (due as described in the Agreement) as
follows:
a. Standard VAR Application Sublicenses. For each Standard
VAR Application Sublicense (defined below) VAR agrees to pay Forte a Sublicense
fee equal to:
i) [*] of VAR's net license revenue from such Sublicense if the
Sublicensee does not purchase a Full Use License (as defined in Section 3.1) for
a Core System (as defined below) from Forte or VAR; or
ii) [*] of VAR's net license revenue from such Sublicense if the
Sublicensee purchases a Full Use Core System license (plus first year
maintenance and support) directly from Forte or VAR prior to or simultaneously
and in connection with the VAR Application license (i.e., a then-current Forte
customer who does not buy a Core System license in connection with the VAR
Application would not trigger this clause).
b. Extended VAR Application Sublicenses. For each Extended VAR
Application Sublicense (defined below) the following terms shall apply:
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
i) VAR shall pay Forte a Sublicense fee equal to [*] of VAR's
net license revenue from such Sublicense, subject to paragraph iv below
regarding Enterprise Customers;
ii) the Sublicensee will be also be required to purchase at a
minimum, one Full Use License for a Core System from Forte or VAR, which Forte
agrees to provide at its then-current local list price, plus first year
maintenance and support. This Full Use License is not required if the
Sublicensee or a Delivery Partner has already acquired at least one Full Use
License for a Core System and has unassigned Designated Developer seats
sufficient for the applicable project. If the Sublicensee or Delivery Partner
has already acquired a Core System license, but all Designated Developer seats
have been assigned, the Sublicensee shall only be required to purchase
additional Designated Developer licenses sufficient for the applicable project.
Additional Designated Developer licenses, if needed, can be purchased by the
Sublicensee, VAR and/or the Delivery Partner. If the Delivery Partner has a
re-usable development license arrangement with Forte, additional development
licenses could be obtained for the re-use fee due under that Delivery Partner's
agreement with Forte. However, unless otherwise agreed by Forte and such
Delivery Partner, such reusable development licenses are "project specific" and
may not be used for non-VAR Application development. All additional Designated
Developer licenses require the purchase of first year maintenance and support
from Forte.
iii) VAR shall not be required to obtain rights to include in
the VAR Application and VAR Application-related functionality created by
Sublicensees or their Delivery Partners, nor shall the Sublicensee be required
to purchase Full Use and/or Runtime licenses to utilize any such new VAR
Application-related functionality. Runtime licenses would, however, be required
for a Sublicensee's deployment of functionality outside the scope of the VAR
Application.
iv) in the event VAR or a Distributor grants an Extended VAR
Application Sublicense to any Enterprise Customer (defined below) during the
initial three year term of this Agreement, Forte shall not be entitled to any
Sublicense fees in connection with such VAR Application licenses; provided,
however, that VAR shall remain liable to Forte for annual Technical Support fees
for such Sublicenses on the terms set forth in Section 6 below as if such
Sublicense fees had been paid to Forte. At the request of VAR, Forte shall
provide information regarding a customer to indicate whether such customer is an
Enterprise Customer.
c. VAR Application Development System. For each Sublicense
of a VAR Application Development System (defined below) VAR agrees to pay Forte
a Sublicense fee [*] of VAR's net license revenue from such Sublicense. Each VAR
Application Development System Sublicense will expressly state that it does not
include a license to use the Products for development, and that Product licenses
are available directly from Forte.
d. Transaction-based or Account-based Sublicenses. For the
initial three years of this Agreement, VAR shall have the right to enter into
"Variable Fee" VAR Application Sublicenses under which VAR receives a recurring
royalty from the Sublicensee based on the number of accounts or transactions
serviced by the VAR Application. Such Variable Fee Sublicenses will have a
maximum term of four years. Forte will receive a Sublicense fee equal to [*] of
cash license fee collected from each such Variable Fee Sublicense for the entire
term of each such Variable Fee Sublicense. On or before the expiration of such
three year term, both companies will evaluate and discuss in good faith the
appropriate revenue sharing and other terms for Variable Fee Sublicenses from
then forward.
e. Pre-paid Sublicense Fees. Forte acknowledges and agrees that
VAR currently has a pre-paid Sublicense fee balance of [*], which may be
applied dollar for dollar solely against Sublicense fees due Forte hereunder on
Sublicenses of the VAR Application, but not Core Systems.
5. Definitions.
a. "Standard VAR Application" means the current shipping standard
release of the VAR Application which permits the performance of up to 90
person-days of initial development using the Products. Development performed
without the Products (such as using the VAR Application Workflow editor,
Non-Product generated scripts and tools, C++ programming language or any Java
Software Development Environment) are not counted in the 90 days.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
b. "Extended VAR Application" means the current shipping standard
release of the VAR Application where more than 90 person-days of initial
development using the Products will be performed. Development performed without
the Products (such as using the VAR Application Workflow editor, Non-Product
generated scripts and tools, C++ programming language or any Java Software
Development Environment) is not counted in the 90 days.
c. "VAR Application Development System" means a VAR Application
licensed by VAR to its customers, global system integrator partners, and/or
Delivery Partners, for end user development, training, demonstration, and/or
vertical application development activities. Product Sublicenses pursuant to
Section 3.1 are not deemed licenses of the VAR Application Development System.
d. "Net license revenue" for Standard VAR Application, Extended
VAR Application, and VAR Application Development System transactions means the
net license fee amount invoiced to the applicable Sublicensee net of product
returns and credits. For Variable Fee Sublicenses, it shall mean VAR's net cash
receipts from the applicable Sublicensee.
e. A "Core System" shall mean 1 Client Environment, 5 Designated
Developers for the Forte Application Environment, 10 Runtime Users, 1 Server
Environment, 1 Development Server, 1 RDBMS Interface, 1 Shared Repository, 1
Documentation Set on both hard-copy and CD-ROM, and 5 student days of training.
f. "Enterprise Customer" is defined as a Forte customer which,
simultaneously with or prior to Sublicensing the VAR Application from VAR, has
obtained Full-Use Product licenses from Forte either (A) under a "site license"
allowing use of unlimited quantities of Product licenses by such customer, or
(B) in a single transaction following December 31, 1996 which included such
customer's payment of at least [*] of recognizable license revenue to Forte
and on which Forte and VAR worked together leading up to such single
transaction. Up to once annually, VAR shall have the right to engage an
independent accountant to audit the accounting books and records of Forte to
verify whether a customer is an Enterprise Customer.
6. Full Use Licenses.
a. For each Full Use License, VAR shall pay to Forte a "Full Use
Sublicense Fee" equal to Forte's then-current Core System list price in the
country or countries in which the Full Use Sublicense will be used. The current
Forte Price List is attached hereto as Exhibit I. Full Use Sublicense Fees are
due net 30 days from the Shipment Date of the applicable Core System Product. If
VAR issues a written Full Use Sublicense quote and such quote is accepted by the
applicable Sublicensee, for a period of ninety (90) days after the date of
submission of the quote to the Sublicensee, the Full Use Sublicense Fee payable
by VAR with respect to the Products identified in the quote shall be based on
the Forte Price List in effect on such date.
b. VAR is free to determine unilaterally the Full Use Sublicense
Fees; provided that all Full Use Sublicenses shall otherwise comply with Forte's
then current internal pricing and configuration guidelines.
x. Xxxxx shall not be required to provide primary technical support
to Sublicensees receiving a Full Use Sublicense in accordance with Section 3.2
of the Agreement with respect to use of the VAR Application; provided, however,
that if such Sublicensee uses the Core System outside the scope of the VAR
Application, such Sublicensee will be required to obtain and pay for technical
support directly from Forte pursuant to a separate Support Agreement between
Forte and the Sublicensee. VAR shall refer all support inquiries on projects
outside the scope of the VAR Application to Forte.
7. Technical Support for Sublicenses. On September 1 of each year during the
---------------------------------
term of this Agreement VAR shall pay Forte an annual technical support services
fee [*] of the then current Cumulative Sublicense Fees (including Full Use
Sublicense Fees) paid or owed by VAR attributable to all actively supported
Sublicensees that have acquired annual technical support services for the VAR
Application as of such date.
8. VAR/MCI Agreement. VAR acknowledges that on or around December 31, 1997 it
-----------------
entered into an agreement with MCI Systemhouse ("MCI Agreement"). Within two
months from the Effective Date of this Agreement, VAR agrees to allow Forte's
counsel the one-time right to review (on VAR's premises) those portions of the
MCI Agreement that are potentially relevant to the Products. Thereafter and for
the term of this Agreement, VAR agrees
----------
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
to allow Forte's counsel the right to review the "pre-payment" provisions of the
MCI Agreement. Forte agrees that the MCI Agreement is VAR Confidential
Information.
9. Joint Marketing and Seminars. The parties agree to engage in joint marketing
----------------------------
activities and to conduct joint seminars for prospective customers, pursuant to
a program to be mutually defined and implemented by the parties.
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Exhibit C
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VAR Application Description
---------------------------
The VAR Application is VAR's CCS product, as described below.
I. CHORDIANT CCS PRODUCT DESCRIPTION
Chordiant CCS - Customer Communications Solution(TM) - integrates customer
communications points and customer facing applications with legacy databases,
the web server, email/fax systems, telephony systems and existing business
critical applications to create an enterprise-wide solutions serving multiple
business units and customer types.
Chordiant CCS(TM) includes a set of applications, business services, distributed
workflow engine called "Workflow Sequencing Object Processing - WSOP(TM)", and
system services, interfaces and data management. The Chordiant CCS(TM) 1.4 and
1.5 releases are packaged and delivered as a system which includes the Chordiant
CCS ChorApps(TM), Chordiant CCS ChorObjects(TM), and Chordiant CCS
ChorServices(TM). The ChorObjects(TM) and ChorServices(TM) are also referenced
as the Chordiant CCS Foundation System.
Chordiant CCS ChorApps(TM) (Applications) consist of the customer facing
applications, business management applications, operational management
applications, system administration and a variety of self-serve applications
designed for integration with web sites and telephony devices. Chordiant CCS(TM)
applications are dynamically created at time of customer inquiry and transaction
based on the customer profile and request; applicable customer and business
processes; together with the supporting business services and customer data. The
dynamic ability to create applications is called P3 Active(TM) and is a result
of technology provided by the Chordiant CCS Workflow Sequencing Object
Processing(TM) (WSOP(TM)) system.
Chordiant CCS(TM) applications are role-based and cover all the functionality
required by the CR (Customer Representative) for customer information, service,
marketing and selling functions; the Business Analyst/Management for defining
and managing business processes, workflows and transactions; Marketing
Management for management of campaigns, offerings and customer information; and
the call center Operational Management for data maintenance, center operations,
human resource scheduling, and system administration. Chordiant applications are
workflow driven and are built from the hundreds of business services and objects
provided in Chordiant CCS(TM), along with third party services provided by
Chordiant's customers, system integration partners and technology partners.
Chordiant CCS ChorObjects(TM) (Business Services, Objects and Workflow system)
contains the business objects integrating your best customer and business
practices together with the WSOP(TM) system, workflow components, workflow
management, a workflow editor and management functions. This layer provides the
rich set of business objects that are common across industries which when
attributed and data enabled for a particular company reflect the company's
specific customer and business processes, policies and transactions.
Chordiant CCS ChorServices(TM) provides the business services to create the IT
infrastructure for Chordiant CCS(TM) and to provide connectivity to telephony
systems, internet, data networks, data base systems and transaction systems.
ChorServices(TM) provides the services enabling customer communications; data
access, management and routing; access and data interfaces to enterprise legacy
and transaction systems and the ability to create customer interfaces into
third-party applications and systems to enable financial transactions, order
processing, billing, payment and other financial and business services. The
ChorServices(TM) commonly integrate and communicate with a customer's telephony
equipment, web servers, other application servers, legacy systems and
transactional applications systems.
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Exhibit E
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Sublicense Agreement Required Provisions
----------------------------------------
Each Sublicense agreement shall refrain from making any warranty on Forte's
behalf, and shall include, at a minimum, contractual provisions which:
1) Except for a Full Use License or where such a restriction is not
permitted by applicable law, prohibit use of the Products except in
connection with the Sublicensee's use of the VAR Application.
2) Prohibit duplication (beyond the number of licensed copies) of the
Products except for temporary transfer in the event of CPU malfunction
and a reasonable number of backup or archival copies.
3) Prohibit timesharing, except for transaction-based or account-based
Sublicenses as permitted under Section 4(d) of Exhibit A; or rental of
the Products.
4) Prohibit reverse engineering, disassembly, decompilation, or other
attempt to derive source code of the Products, except and as to the
extent permitted by applicable law.
5) Prevent title from passing to the Sublicensee.
6) To the extent legally possible, disclaim Forte's liability for any
indirect, incidental, or consequential damages arising from the use of
the Products.
7) Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the VAR the Products,
Documentation and all archival or other copies of the Product except
for a reasonable number of archival copies.
8) Require the Sublicensee to comply fully with all relevant export laws
and regulations of the United States and of other countries in which
the Products will be used to assure that neither the Products, not any
direct product thereof, are exported, directly or indirectly, in
violation of United States or other applicable law.
9) Allow VAR to audit the Sublicensees use of the VAR Application and
the Products.
10) Allow VAR to comply with Section 3.1 (l) of this Agreement.
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
ADDENDUM A to
VALUE-ADDED RESELLER LICENSE AND SERVICES AGREEMENT
BETWEEN
CHORDIANT SOFTWARE, INC.
AND
Forte Software, Inc.
This Addendum A shall amend the Value-Added Reseller License and Services
Agreement dated October 30, 1998 ("Agreement") between Chordiant Software, Inc.
("VAR") and Forte Software, Inc. ("Forte") as of the Effective Date indicated
below. Other than the amendments listed below, the terms and conditions of the
Agreement remain unchanged and in full force and effect. In the event of any
conflict between the Agreement and this Addendum A, the latter shall govern.
Capitalized terms herein shall have the same meaning as in the Agreement, unless
otherwise indicated.
1. Forte hereby grants VAR the one time right to Sublicense, under the terms
herein and under the Agreement, up to 20 Full Use Designated Developer Licenses
of the Core System Products to Electronic Data Systems ("EDS" including EDS'
subsidiary, Centrobe) for General Motors internal use. VAR shall pay Forte a
Sublicense fee equal to Forte's then-current list price, [*], plus initial year
Support Fees for such Sublicense.
2. VAR shall also have the ongoing right during the term of the Agreement to
grant Sublicenses for additional Full Use Designated Developers Licenses of the
Core System Products. For each such Sublicense, VAR shall pay Forte a
Sublicense fee equal to Forte's then-current list price, plus initial year
Support Fees.
The parties have executed this Addendum A as of February 22, 1999 (the
"Effective Date").
Executed by VAR Executed by Forte Software, Inc.
Signature: /s/ Xxxxxx X. Xxxxxxxxxxx Signature: /s/ Xxxxx Xxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx Name: Xxxxx Xxxxxxx
(Please Print) (Please Print)
Title: EVA/CFO Title: VP, General Counsel
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
ADDENDUM B to
VALUE-ADDED RESELLER LICENSE AND SERVICES AGREEMENT
BETWEEN
CHORDIANT SOFTWARE, INC.
AND
Forte Software, Inc.
This Addendum B shall amend the Value-Added Reseller License and Services
Agreement dated October 30, 1998 ("Agreement") between Chordiant Software, Inc.
("VAR") and Forte Software, Inc. ("Forte") as of the Effective Date indicated
below. Other than the amendments listed below, the terms and conditions of the
Agreement remain unchanged and in full force and effect. In the event of any
conflict between the Agreement and this Addendum B, the latter shall govern.
Capitalized terms herein shall have the same meaning as in the Agreement, unless
otherwise indicated.
1. VAR shall pay a nonrefundable license fee of [*], payable ninety (90) days
from the Effective Date of this Addendum B. Upon execution of this Addendum,
such payment obligation is noncancelable. In consideration for such payment, the
Sublicense fee rates and royalties specified in Exhibit A under the Agreement
shall be adjusted as follows:
A. In Section 4(a)(i), [*] is reduced to [*].
B. In Section 4(a)(ii), [*] is reduced to [*].
C. In Section 4(b)(i), [*] is reduced to [*].
D. In Section 4 (c), [*] is reduced to [*].
E. In Section 4 (d), [*] is reduced to [*].
2. VAR shall pay a nonrefundable pre-paid license fee of [*], payable thirty
(30) days from the Effective Date of this Addendum B. Upon execution of this
Addendum, such payment obligation is noncancelable. In consideration for such
pre-paid license fee, Forte shall waive the next [*] of Sublicense fees
(i.e. credit VAR for any type of license fees otherwise due to Forte under the
initial 3 year term of the Agreement for Products that VAR is currently
permitted to Sublicense, but not Support Fees or fees for services) that would
otherwise be due under the Agreement and Sublicense fee schedule, as amended in
Section 1 above.
The Effective Date of this Addendum B is March 1, 1999 (the "Effective Date").
Executed by VAR Executed by Forte Software, Inc.
Signature: /s/ Xxxxxx X. Xxxxxxxxxxx Signature: /s/ Xxxxx Xxxxxxxx
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Name: Xxxxxx X. Xxxxxxxxxxx Name: Xxxxx Xxxxxxxx
(Please Print) (Please Print)
Title: EVP/CFO Title: President and CEO
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
